[FC-discuss] Artist of iconic Obama image sues AP to protect his fair use of original photograph

[Kevin Driscoll]

I am glad that this will be heard by a judge. I think there is a
strong chance that it will be deemed fair use.

Seems worth highlighting that the photographer is happy about the
transformative re-use:

>>
[Garcia] added, "If you put all the legal stuff away, I'm so proud of
the photograph and that Fairey did what he did artistically with it,
and the effect it's had."
<<

We've seen that before. :)



Kevin

-




On Tue, Feb 10, 2009 at 3:56 PM, Jacob Caggiano
<Jacob at fishbowlescape.com> wrote:
>
>
> From the New York Times
>
> http://www.nytimes.com/2009/02/10/arts/design/10fair.html
>
>
> February 10, 2009
>
> Artist Sues The A.P. Over Obama Image
>
> By RANDY KENNEDY
>
> In a pre-emptive strike, the street artist Shepard Fairey filed a lawsuit on
> Monday against The Associated Press, asking a federal judge to declare that
> he is protected from copyright infringement claims in his use of a news
> photograph as the basis for a now ubiquitous campaign poster image of
> President Obama.
>
> The suit was filed in federal court in Manhattan after The Associated Press
> said it had determined that it owned the image, which Mr. Fairey used for
> posters and stickers distributed grass-roots style last year during the
> election campaign. The photo, showing Mr. Obama at the National Press Club
> in April 2006, was taken for The A.P. by a freelance photographer, Mannie
> Garcia.
>
> According to the suit, A.P. officials contacted Mr. Fairey's studio late
> last month demanding payment for the use of the photo and a portion of any
> money he makes from it.
>
> Mr. Fairey's lawyers, including Anthony T. Falzone, the executive director
> of the Fair Use Project and a law lecturer at Stanford University, contend
> in the suit that Mr. Fairey used the photograph only as a reference and
> transformed it into a "stunning, abstracted and idealized visual image that
> created powerful new meaning and conveys a radically different message" from
> that of the shot Mr. Garcia took.
>
> The suit asks the judge to declare that Mr. Fairey's work is protected under
> fair-use exceptions to copyright law, which allow limited use of copyrighted
> materials for purposes like criticism or comment.
>
> "Fairey did not do anything wrong," said Julie A. Ahrens, associate director
> of the Fair Use Project and another of Mr. Fairey's lawyers, in a statement
> on Monday. "He should not have to put up with misguided threats from The
> A.P." Paul Colford, a spokesman for The A.P., said on Monday that the agency
> was "disappointed by the surprise filing by Shepard Fairey and his company
> and by Mr. Fairey's failure to recognize the rights of photographers in
> their works."
>
> He added: "A.P. was in the middle of settlement discussions with Mr.
> Fairey's attorney last week in order to resolve this amicably and made it
> clear that a settlement would benefit the A.P. Emergency Relief Fund, a
> charitable fund that supports A.P. journalists around the world who suffer
> personal loss from natural disasters and conflicts."
>
> Mr. Fairey, 38, has become one of the most visible practitioners of a
> guerrilla-style art that has grown out of the graffiti scene but has
> expanded beyond paint to include a wide variety of techniques and materials,
> producing works usually displayed illegally on buildings and signs.
>
> Mr. Fairey decided to create the image on his own before contacting the
> Obama campaign, which welcomed it but never officially adopted it because of
> copyright concerns. Before the election, Mr. Fairey was best known for his
> fake-advertising stickers and posters, pasted in cities across the country,
> showing an ominous, abstracted image of the wrestler Andre the Giant along
> with the word "Obey."
>
> Mr. Fairey is the focus of a retrospective that opened last week at the
> Institute of Contemporary Art in Boston. (In a development that was not much
> of a surprise, he was arrested there on Friday, accused of illegally pasting
> his work in places around Boston; he has pleaded not guilty.) A collaged
> work made by Mr. Fairey based on his Obama poster was acquired last month by
> the National Portrait Gallery in Washington, part of the Smithsonian
> Institution, and placed in its permanent collection.
>
> After Mr. Obama's victory, speculation increased about which picture had
> served as the basis for Mr. Fairey's posters. In interviews the artist said
> that it was one he had found on the Internet. Bloggers, including the
> Manhattan gallery owner James Danziger, pursued several leads until,
> according to the lawsuit, Tom Gralish, a Pulitzer Prize-winning photographer
> for The Philadelphia Inquirer, helped track down a photo by Mr. Garcia that
> showed Mr. Obama sitting beside the actor George Clooney at a 2006 event
> about Darfur at the National Press Club.
>
> Further complicating the dispute, Mr. Garcia contends that he, not The
> Associated Press, owns the copyright for the photo, according to his
> contract with the The A.P. at the time. In a telephone interview on Monday,
> Mr. Garcia said he was unsure how he would proceed now that the matter had
> landed in court. But he said he was very happy when he found out that his
> photo was the source of the poster image and that he still is.
>
> "I don't condone people taking things, just because they can, off the
> Internet," Mr. Garcia said. "But in this case I think it's a very unique
> situation."
>
> He added, "If you put all the legal stuff away, I'm so proud of the
> photograph and that Fairey did what he did artistically with it, and the
> effect it's had."
>
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